Case C-132/08
Lidl Magyarország Kereskedelmi bt
v
Nemzeti Hírközlési Hatóság Tanácsa
(Reference for a preliminary ruling from the Fővárosi Bíróság)
(Free movement of goods – Radio equipment and telecommunications terminal equipment – Mutual recognition of conformity – Non-recognition of the declaration of conformity issued by the manufacturer established in another Member State)
Summary of the Judgment
1.Approximation of laws – Radio equipment and telecommunications terminal equipment and mutual recognition of conformity – Directive 1999/5
(European Parliament and Council Directive 1999/5)
2.Approximation of laws – General product safety – Directive 2001/95
(European Parliament and Council Directive 2001/95)
3.Free movement of goods – Exceptions – Existence of harmonising directives – Effects
(Arts 28 EC and 30 EC; European Parliament and Council Directive 1999/5, Art. 5)
1.Member States cannot, under Directive 1999/5 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity, require a person who places radio equipment on the market to provide a declaration of conformity even though the producer of that equipment, whose head office is situated in another Member State, has affixed the ‘CE’ marking to that product and issued a declaration of conformity in its regard. Directive 1999/5 confers a presumption of compliance on apparatus which bears the ‘CE’ marking. That marking attests the conformity of the apparatus with all the provisions of that directive, including the conformity assessment procedures provided for by that directive. Consequently, products bearing the ‘CE’ marking may be placed on the market without having to undergo a prior authorisation procedure or any other procedure designed to multiply the number of persons required to affix the conformity marking.
(see paras 26, 28, 33, operative part 1)
2.Directive 2001/95 on general product safety does not apply to the determination of issues concerning the obligation of a person to provide a declaration of conformity of radio equipment. As regards the power of the Member States, in accordance with Directive 2001/95, in connection with the marketing of radio equipment, to impose obligations other than the presentation of a declaration of conformity, a person who markets a product may be regarded as being the producer of that product only under the conditions laid down by Directive 2001/95 itself in Article 2(e), and as being the distributor of that product only under the conditions set out in Article 2(f). The producer and the distributor may be bound only by obligations which Directive 2001/95 imposes on each of them respectively.
(see para. 40, operative part 2)
3.Where a matter is regulated in a harmonised manner at Community level, any national measure relating thereto must be assessed in the light of the provisions of that harmonising measure and not in that of Articles28 EC and 30 EC. In matters coming under Directive 1999/5 on radio equipment and telecommunications terminal equipment and the mutual recognition of their conformity, Member States must comply in full with the provisions of that directive and may not maintain in force contrary national provisions. In the case where a Member State takes the view that conformity with a harmonised standard does not guarantee compliance with the essential requirements laid down by that directive which that standard is supposed to cover, that Member State is required to follow the procedure set out in Article 5 of that directive. By contrast, a Member State may, in support of a restriction, invoke grounds external to the field harmonised by Directive 1999/5. In such a case, it may invoke only the reasons laid down in Article 30EC or mandatory requirements relating to the public interest.
(see para. 46, operative part 3)